Ka Wai Ola - Office of Hawaiian Affairs, Volume 30, Number 3, 1 Malaki 2013 — E mālama i ka wai, part one [ARTICLE+ILLUSTRATION]

E mālama i ka wai, part one

Trnstee' s note: This month's eolumn was contributed by Jonathan Likeke Scheuer, aformer īand management director at OHA. Who are the "sister agencies" of the Office of Hawaiian Affairs? Most people might name the other Hawaiian trusts: Kamehameha Schools, the Department of Hawai-

ian Home Lands, the Queen Lili'uokalani Trust, the King William Charles Lunalilo Trust and the Queen Emma Trust. They have identical or overlapping beneficiaries, staff often move among them and they partner in many small and large ways. But what about the state Commission on Water Resource Management (CWRM, or sometimes called the Water Commission)? I don't believe most people would immediately think of CWRM as a sister to OHA. It might be argued that OHA and CWRM share a closer genealogy to eaeh other than to any of the Hawaiian trusts. Both are trusts, with OHA managing its hnaneial and real estate assets, and the Water Commission serving as the trustees for the puhlie trust in water. Both were formed to address wrongs with deep historical roots. Both are state entities created by the 1978 amendments to the state Constitution, and a number of delegates to that Constitutional Convention were critical to the creation of both. Both have seen the Hawai'i Supreme Court clarify their kuleana mulhple times. Finally and perhaps most importantly, the duties of these two agencies overlap. For Hawaiians, ola i ka wai - water is life - and it would be impossible to fulfill OHA's mission to work for the betterment of conditions of Hawaiians without working on water. The state Water Commission itself has specific duties to uphold and protect Hawaiian water rights while managing water for all the people of Hawai'i. Thus in many key ways, the success or failure of these "sisters" will depend on the other.

Because CWRM is so important and so tied to OHA, when I was offered the ehanee to submit a guest eolumn I thought I would write about this close (but not necessarily always sisterly!) relationship. Next month I will talk about this relationship, but this month I will just share a little more about the CWRM's founding since it shapes the relationship with OHA. The Water Commission

was created in part to resolve issues from a series of legal cases that began on West Kaua'i. These legal cases began with one called McBryde Sugar Co. v. Robinson, ruled on by the Hawai'i Supreme Court in 1973. Two sugar companies were suing eaeh other over their water rights in the Hanapēpē Valley. Both argued about how mueh water they thought they "owned," and they based their arguments on a number of earlier Hawai'i court decisions. The decisions they relied on, however, were rulings made when Hawai'i judges were strongly tied to, and even stockholders in, sugar companies. Those decisions increasingly treated water like private property that could be bought and sold. A Circuit Court ruling was made, and then the case was appealed to the Hawai'i Supreme Court. That court was led by a Hawaiian chief justice, William S. Richardson. The Richardson Court went all the way back to the Mahele to discuss Hawai'i water rights. In brief they found water was never privatized - it was held in trust by the king for all the people, and the state was the successor trustee. A mling on appeal of that case suggested the state as a trustee could resolve these private property claims against other puhlie interests, whieh gave rise to the creation of the Water Commission. Just how the Water Commission should resolve private claims against the puhlie trust, including Hawaiian water rights, has been a critical focus of OHA ever since. ■

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